R v Cook - [2006] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COOK
[2006] SASC 231
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
4 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL ALLOWED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED - SUSPECTED OR REASONABLY SUSPECTED OR SUPPOSED TO HAVE BEEN STOLEN OR UNLAWFULLY OBTAINED - BASIS AND REASONABLENESS OF SUSPICION
Appellant charged with attempted aggravated serious criminal trespass in a non-residential building, theft and unlawful possession - appellant convicted on first and third counts - appeal against conviction on count of unlawful possession - police stopped vehicle in which appellant and two other men were travelling - appellant seated in rear of the vehicle - police took possession of number of items found in vehicle - items particularised in unlawful possession count - appellant declined to answer police questions about items - police officers gave evidence as to why they suspected items were unlawfully obtained - reasons included: driver's denial of ownership of items; items were of the type that were commonly stolen; items were out of place in the back of a vehicle - where only some items tendered as evidence at trial - where trial judge did not refer to specific evidence in relation to the charge in course of summing-up - whether it was necessary for reasonable suspicion to attach to all items particularised in the count - whether there was sufficient evidence to support police officers' claim of reasonable suspicion in relation to any of the items - whether verdict was unsafe and unsatisfactory - discussion of requirement of reasonable suspicion under s 41 Summary Offences Act 1953 - it is not necessary for reasonable suspicion to attach to all items particularised in a count - found insufficient evidence to support claim of reasonable suspicion in relation to any of the items - verdict was unsafe and unsatisfactory - conviction on unlawful possession count set aside - Held: appeal allowed.
Summary Offences Act 1953 s 41, referred to.
Edens v Cleary [1975] 1 NSWLR 278; Dent v Hann [1949] ALR 271; Machent v Quinn [1970] 2 All ER 255, applied.
Forrest v Normandale (1973) 5 SASR 524; O'Sullivan v Tregaskis [1948] SASR 12; Williams v The Queen (2002) 11 Tas R 258; Bridgeland v Zanker (1992) 166 LSJS 471; De Ruiter v Betts (1980) 87 LSJS 290; Gough v Braden [1993] 1 Qd R 100; Tepper v Kelly (1988) 47 SASR 271, discussed.

R v COOK
[2006] SASC 231
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ. I would allow the appeal against the conviction on count 3. I would not direct a retrial. I agree with the reasons of Duggan J.
I agree that the Court should now hear submissions as to the sentence appropriate for count 1, on which the appellant remains convicted.
DUGGAN J. The appellant was presented for trial on an information charging him with attempted aggravated serious criminal trespass in a non- residential building, theft and unlawful possession. He was found guilty on the first and third counts and not guilty on the second count. He now appeals against conviction on the third count of unlawful possession. The sole ground of appeal asserts that the verdict was unsafe and unsatisfactory.
According to the prosecution case, the appellant and two other men were observed attempting to break into a supermarket at Pooraka at approximately 2.00 am on 20 April 2005. A local resident observed the attempt to break into the supermarket from her residence on the other side of the road. She telephoned the police and reported what she had seen. She then saw the men give up the attempt and drive off.
A short time later, the vehicle in which the men were travelling was stopped by the police. The appellant was sitting in the rear of the vehicle. Another man was sitting in the front passenger seat next to the driver.
The police searched the vehicle and took possession of a number of items, particulars of which were set out in the unlawful possession count. The count alleged that the appellant –
had possession of personal property, namely a jack, two lights, two speakers, key ring and keys, backpack, three packets of various fuses, six packets of light bulbs, one access card, black folder, a black and yellow screwdriver, a hammer and silver key which either at the time of such possession or at a subsequent time before the making of a complaint under this section in respect of the possession, was reasonably suspected of having been stolen or obtained by unlawful means.
According to the evidence, the driver of the vehicle denied ownership of the items when police officers spoke to him at the location where the vehicle was stopped. The appellant was advised that he was not required to answer questions. The three men were then arrested and taken to a police station where they were formally questioned. The appellant declined to answer questions.
Most of the items listed in the third count were found on the rear seat of the vehicle. One of the police officers, Constable Hanton, gave evidence that he suspected that the items of property were obtained unlawfully. The examination-in-chief on this topic proceeded as follows:
QWhen you saw this gear in the back of the car – when the accused and another was arrested – did you form any view as to where this gear had come from?
AI did.
QWhat was that view?
AI formed the view that it could have been obtained by unlawful means.
QWhy did you form that view?
APrimarily because a lot of the stuff didn’t fit in the back seat of the car and it is the sort commonly stolen.
When asked in cross-examination how he formed the suspicion, Constable Hanton said that these were items commonly taken and resold. He added that he was influenced by the fact that the driver of the vehicle denied ownership of the items. The cross-examination continued:
QWhat was it that aroused your suspicion about the black shoulder bag backpack and its contents?
ABecause it contained a large amount of auto parts, just didn’t fit in the back seat of the car.
QSorry?
AIt didn’t seem right in the back seat of the car.
QWhy didn’t that seem right?
ABecause it was a backpack in reasonably good condition, it contained a whole amount of reasonably new looking auto parts, fuses and bulbs. I formed the suspicion that it may have been obtained by unlawful means.
QWhat was it about them that was suspicious?
AI just told you.
QWell, the fact that it’s in a black shoulder bag, does that arouse – the light bulbs and fuses are in a black shoulder bag does that arouse suspicion?
AThe items are commonly stolen, they’re easily transported away, they could be removed from any amount of motor vehicles and no-one was admitting ownership of them.
QThe contents of the black folder; what was in the black folder, do you know?
AIf I recall, it was actually somebody else’s business cards and other forms of ID.
QYou formed a suspicion about that, is that right?
AYes.
QAnd that was based upon there being some names that didn’t attach to the people in the car?
AYes.
QThat was in the front seat, was it, front passenger seat?
AFront left-hand seat.
Constable Mitchell, who took part in the arrest of the three men, said in evidence that she formed the opinion that the items on the back seat were stolen because of the nature of the items, their location on the seat and the hour of the morning.
Section 41 of the Summary Offences Act 1953 (“the Act”) provides as follows:
(1)A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for 2 years.
(2)It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3)If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purpose of this section, be taken to have been in the possession of that person.
In order to establish the commission of the offence, it must be proved first that the defendant was in possession of the subject property. Then it is necessary to prove that a suspicion was held that the property was stolen or obtained by unlawful means. The suspicion must be held at the time of possession or, at least, at some time prior to the making of the complaint. The suspicion must relate to the property and not the person: De Ruiter v Betts (1980) 87 LSJS 290.
It must be a reasonable suspicion, but this is a matter of opinion or judgment as to the quality of the suspicion. It is inappropriate to speak of this requirement being proved beyond reasonable doubt: Tepper v Kelly (1988) 47 SASR 271 at 276.
If these matters are established, then the onus is on the defendant to prove, on the balance of probabilities, that possession was obtained lawfully. Otherwise, the offence will have been proved.
In the present case, the focus was on the issues summarised by Mitchell and Wells JJ in Forrest v Normandale (1973) 5 SASR 524 at 543:
… the court is called on to answer the question, What were the facts or circumstances operating on the suspecting officer’s mind, and, having regard to those facts and circumstances, was that officer’s suspicion reasonable?
The circumstances which might lead to a reasonable suspicion are many and varied. Regard may be had to “the nature of the property, to the circumstances in which it has been found, and to the behaviour of the defendant with respect to it”: O’Sullivan v Tregaskis [1948] SASR 12 at 16.
The first argument put forward by the appellant is that, where the prosecution particularises several items of property in the information, it is necessary for the jury to find that the required suspicion attaches to all items, otherwise the charge will not have been proved. It was pointed out that, in this case, the trial judge directed the jury that it was sufficient to find that all or some of the items were reasonably suspected of being stolen or unlawfully obtained.
I cannot agree with the appellant’s submission. The information charged one offence. The offence is committed if the defendant is in possession of some item of property which is reasonably suspected of being stolen or unlawfully obtained. This assumes, of course, that the defence is not established.
There is a clear analogy with theft cases, where it is often alleged that a number of items have been stolen on the one occasion. In Machent v Quinn [1970] 2 All ER 255, justices of the peace found that the appellant had entered premises and stolen four sweaters valued at $25.00. The information alleged that a much larger quantity of clothing, valued at $200, had been stolen. A submission was made that the justices could not convict the appellant because the information alleged that additional items had been stolen. Lord Parker CJ said at 256:
It has always been accepted that it is unnecessary that the prosecution should prove that all the articles mentioned in the information or indeed, in the case of an indictment, in the indictment, have been stolen. If proof is given that the accused has stolen any one of those articles it is sufficient.
See also Archbold, Criminal Pleading, Evidence in Practice, 2005 edn [21-7]; Blackstone’s Criminal Practice, 2006 edn B4.3.
Machent v Quinn was followed by the Tasmanian Court of Criminal Appeal in Williams v The Queen (2002) 11 Tas R 258. In that case, the court discussed the responsibility of the trial judge to determine an appropriate sentencing basis in cases where there may be some doubt as to whether all the items were stolen. In view of my conclusion in this case, it is unnecessary for me to deal further with that matter.
In Edens v Cleary [1975] 1 NSWLR 278, the issue arose in relation to an unlawful possession charge. Yeldham J undertook an extensive review of a series of larceny and unlawful possession cases in which it had been held that it was unnecessary to prove that every item of property referred to in the charge had been stolen in the case of a charge of theft or suspected of having been stolen or unlawfully obtained in the case of a charge of unlawful possession. His Honour followed this line of authority. I respectfully agree with his conclusion that there is no difference in principle between the larceny cases and the unlawful possession cases. There would appear to be no reason to differentiate between the two types of case.
See also Gough v Braden [1993] 1 Qd R 100 at 101.
Next, it was argued that there was insufficient evidence to support the claim of reasonable suspicion in relation to any item of property particularised in the information.
Counsel for the Director of Public Prosecutions conceded on the hearing of the appeal that some of the items could not have been the subject of reasonable suspicion. He referred to the keys and the screwdriver. In my view, it is also clear that the hammer, described in the evidence as being “rusted”, could not form the basis of a conviction. Constable Hanton said he relied on the consideration that the hammer could be used in breaking offences. However, this is not to say that it might have been stolen or unlawfully obtained.
The car jack was lying on the back seat and Constable Hanton said he regarded its position as significant. However, the interior of the car was in an untidy state and, in my view, no significance could be attached to this consideration. There was nothing else about the jack or the circumstances in which it was found which would give rise to the suspicion required by s 41 of the Act.
The main reason which the police officer gave for his suspicion in relation to the items generally, was that they were out of place in the back of the car and they were items of the sort commonly stolen. There is no apparent basis for asserting that objects such as those which were in the back of the car are particular targets for theft. It would rarely be the case that a consideration of this nature would be relevant to the formation of a reasonable suspicion under s 41: cf. De Ruiter v Betts at 293.
As for the position of the objects on the rear seat, it is difficult to attach much relevance to this consideration. Furthermore, the items were not in quantities such as would attract suspicion.
The driver of the vehicle denied that any of the property belonged to him and this was a factor which could have some relevance, although I do not think it was sufficient to contribute in any significant extent to the formation of a reasonable suspicion.
The police officer also relied on the fact that no-one admitted ownership of the property. When the vehicle was stopped by the police, the appellant was told that he did not have to answer any questions. He declined to answer questions when interviewed. If the comment about not admitting ownership was based in part on the appellant’s refusal to answer questions after being cautioned, then such refusal could not be used as a relevant factor in the formation of a reasonable suspicion: Forrest v Normandale at 541.
Unfortunately, only some of the items which may have been relevant to the suspicion were tendered. In some cases this may not be essential, but in other cases inspection of the items may be necessary if significance is to be attached to them. This was so in the case of a black folder which was found on the floor on the front passenger side of the vehicle. It was not produced to the court. However, Constable Hanton described it as “a RACV black folder containing cards and various papers and a street directory of Victoria”. In cross-examination, the witness said:
I recall it was somebody else’s business cards and other forms of ID.
The evidence as to the contents of the folder was vague. It may well have been the sort of item to which a reasonable suspicion could attach. However, it would be inappropriate to place reliance upon the contents of the folder when it was not shown to the jury and a vague description of its contents was given to the jury.
An item described as an “access card” was also found in the vehicle. It was produced to the court when Constable Hanton was giving evidence, but was not tendered as an exhibit. There is no record of any further description of the object being supplied to the jury. Again, the jury were unable to test the assertion of reasonable suspicion.
Napier CJ in Dent v Hann [1949] ALR 271 and Cox J in Bridgeland v Zanker (1992) 166 LSJS 471 referred to the drastic nature of the provision creating the offence of unlawful possession, predicated as it is on reasonable suspicion which, if established, throws the burden on the defendant of proving that he or she obtained the property lawfully. Napier CJ stressed the importance of the facts which bring the section into play being “clearly disclosed to the Court so that the Court can say whether the suspicion was one which it was reasonable to entertain in the circumstances”. After reviewing the operation of the section, Cox J said that “the room for excusable error in the reasoning that leads to a defendant’s conviction must be small indeed”.
It must be said that the asserted grounds for suspicion in this case in relation to all items of property were very thin. Furthermore, there were deficiencies in the way in which some of the evidence was presented before the court. I have referred to the failure to tender two exhibits which required inspection by the jury if any inferences were to be drawn from them relevant to the issue of reasonable suspicion.
Finally, although the trial judge directed the jury on the law relevant to s 41, he did not assist the jurors by referring to, and commenting on, the evidence given in relation to the charge. As is apparent from the above discussion, careful directions were required on the proper approach to the assessment of the reasonableness of the suspicion of the police officers.
For all these reasons, I have reached the conclusion that the conviction on the third count is unsafe and unsatisfactory. I would allow the appeal and set aside the conviction on the third count. It would be inappropriate in the circumstances to direct a retrial. The setting aside of the conviction would necessitate re-sentencing on the first count. I would hear counsel for the appellant and the respondent on the appropriate sentence to be passed on the first count.
GRAY J. I would allow this appeal against conviction. I do not wish to add to the reasons of Duggan J. I agree with the orders proposed by Duggan J.